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Petitions to Watch | Conference of 9.29.09 (Part IV)

This is the fourth edition of  “Petitions to Watch”  featuring cases up for consideration at the Justices’ opening conference of September 29.  We’ll have one final post tomorrow; included in today’s post are the Second Amendment incorporation petitions out of the Second and Seventh Circuits. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.   Links to previous editions are available in our archives on SCOTUSwiki.

Docket: 08-1459
Title: Michigan v. Dorsey
Issue: When all containers, including such effects as purses, are places within the premises where the contraband might be found, is the search of a personal effect (here a purse dropped to the floor by Respondent) within the scope of the warrant?

Docket: 08-1470
Title: Berghuis, Warden v. Thompkins
Issue: Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them.

Docket: 08-1498 ; 09-89
Title: Holder, Attorney General v. Humanitarian Law Project ; Humanitarian Law Project v. Holder
Issue: Whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization, is unconstitutionally vague; Whether the criminal prohibitions in 18 U.S.C. § 2339B(a)(1) on the provision of “expert advice or assistance” “derived from scientific [or] technical … knowledge” and “personnel” are unconstitutional with respect to speech that furthers only lawful, nonviolent activities of proscribed organizations.



Docket: 08-1515
Title: Golden Gate Restaurant Association v. City and County of San Francisco, California, et al.
Issue: Whether ERISA section 514(a), 29 U.S.C. § 1144(a), preempts local laws that mandate ongoing employer contributions for employee health-benefits, or alternative payments to a local government, and extensive recordkeeping and reporting and disclosure requirements.

Docket: 08-1525
Title: Improv West Associates, et al. v. Comedy Club, Inc. et al. (similar to 08-1396/08-1446, on manifest disregard)
Issue: Whether “manifest disregard of the law” is a valid ground for vacatur of an arbitration award under the Federal Arbitration Act and whether the FAA allows for vacatur of an arbitration award based upon an arbitrator’s good faith but, in the view of the reviewing court, “fundamentally incorrect” interpretation of state law.

Docket: 08-1529 ; 08-1547
Title: Migliaccio, et al. v. Castaneda et al. ; Henneford v. Castaneda et al.
Issue: Does 42 U.S.C. § 233(a) make the Federal Tort Claims Act the exclusive remedy for claims arising from medical care and related functions provided by Public Health Service personnel, thus barring Bivens actions?

Docket: 08-1536
Title: Palazzo v. United States
Issue: Does 21 U.S.C. § 355(i) give the Secretary of Health and Human Services the authority to create criminally enforceable regulations governing physician clinical investigators?

Docket: 08-1555
Title: Samantar v. Bashe Abdi Yousuf, et al.
Issue: . Whether a foreign state’s immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state and whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual’s former capacity as an official acting on behalf of a foreign state.

Docket: 08-1569
Title: United States v. O’Brien and Burgess
Issue: Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

    • Opinion below (1st Circuit)
    • Petition for certiorari
    • Brief in opposition for respondent Burgess
    • Appendix to brief in opposition
    • Brief in opposition for respondent O’Brien
    • Petitioner’s reply

      Docket: 08-1589
      Title: Dow Chemical Company v. Tanoh, et al.
      Issue: Can removal of mass civil actions under the Class Action Fairness Act (CAFA) be avoided by dividing a single mass action into several, identical cases, each with less than 100 plaintiffs? Does CAFA require a removing party to demonstrate that at least 100 plaintiffs will be parties to an actual trial of the removed action or is removal determined at the time of filing, regardless of how the case is eventually tried?

      Second Amendment cases

      Docket: 08-1497 ; 08-1521
      Title: NRA, et al. v. City of Chicago ; McDonald, et al.  v. City of Chicago
      Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

      Docket: 08-1592
      Title: Maloney v. Rice
      Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States.

      Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

      Docket: 08-1461; 08-1463
      Title: Mylan Laboratories, Inc., et al. v. Takeda Chemical Industries, Ltd., et al. ; Alphapharm Pty., Ltd., et al. v. Takeda Chemical Industries, Ltd., et al.
      Issue: Does 35 U.S.C. § 285 permit the imposition of a ten-million-dollar attorney-fee award based substantially on (i) a generic drug maker’s challenge to a patent’s validity on different grounds than those stated in its pre-suit notice to the brand company, and (ii) the trial court’s post-trial determination that the drug maker’s initial (and ultimately unlitigated) theory lacked merit. [Akin Gump represents the petitioner in 08-1461.]